Timothy Woods v The Queen - [2016] VSCA 293

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0163

TIMOTHY WOODS	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	25 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 293
JUDGMENT APPEALED FROM:	DPP v Woods (Unreported, County Court of Victoria, Judge Murphy, 20 July 2016)

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CRIMINAL LAW – Application for leave to appeal against sentence – Aggravated burglary (3y 9m) – Common law assault (x2) (6m (x2)) – Making threats to kill (x2) (8m (x2)) – Contravention of a family violence order (x2) (2m and 6m) – Attempt to pervert the course of justice (10m) – Total effective sentence 5y – Non-parole period 3y – Leave to appeal granted on proposed ground 4 concerning ‘double punishment’ otherwise leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Balmer & Associates
For the Respondent	No appearance	Mr John Cain, Solicitor for Public Prosecutions

WHELAN JA:

On 10 May 2016 the applicant was found guilty in the County Court after a trial of one offence of aggravated burglary, two offences of common law assault, two offences of making threats to kill, and two offences of contravening a family violence intervention order. He had already pleaded guilty, on a separate indictment, to one offence of attempting to pervert the course of justice. He was acquitted of further charges arising out of the same incident, being one charge of common law assault, one charge of making a threat to kill, a charge of indecent assault, and a charge of persistent contravention of a family violence intervention order (which was a more serious alternative to the two counts of contravention of which he was convicted).

A plea hearing was conducted on 11 May 2016 and 15 July 2016. On 20 July 2016 the applicant was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

Trial indictment: F10491221

1. Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 3 years’ 9 months Base

2 Common law assault [Contrary to Common Law] 5 years [Crimes Act 1958 s 320] 6 months 2 months

3. Making threats to kill [Crimes Act 1958 s 20] 10 years [Crimes Act 1958 s 20] 8 months

4. Making threats to kill [Crimes Act 1958 s 20] 10 years [Crimes Act 1958 s 20] 8 months 4 months

5. Common law assault [Contrary to Common Law] 5 years [Crimes Act 1958 s 320] 6 months

Alt. 9A Contravention of a family violence intervention order [Family Violence Protection Act 2008 s 123(2)] 2 years or 240 penalty unit fine [Family Violence Protection Act 2008 s 123(2)] 2 months

Alt. 9B Contravention of a family violence intervention order [Family Violence Protection Act 2008 s 123(2)] 2 years or 240 penalty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Timothy Woods v The Queen

Details

AGLC: Timothy Woods v The Queen [2016] VSCA 293
Case: [2016] VSCA 293
Decision Date: 25 November 2016

CaseChat Overview and Summary

The matter before the court involved Timothy Woods, the appellant, who sought leave to appeal against his sentence. Woods had been convicted of multiple offences, including aggravated burglary, common law assault, making threats to kill, contravention of a family violence order, and attempt to pervert the course of justice. The trial judge sentenced Woods to a total effective term of five years, with a non-parole period of three years. Woods applied for leave to appeal against his sentence, raising several grounds for appeal. The central issue for the court was whether Woods' sentence was excessive and whether there were any grounds for allowing the appeal.

The court identified several key legal issues that required resolution. The primary focus was on whether the cumulative sentence imposed by the trial judge was manifestly excessive. This involved assessing the severity of each offence and the appropriateness of the overall sentence. Additionally, the court needed to determine whether the sentence constituted 'double punishment', where a single act was punished twice under different legal provisions. Another issue was whether the sentence was proportionate to the crimes committed, considering the totality of the offences and the principles of sentencing.

In its reasoning, the court examined each ground of appeal proposed by Woods. The court found that the overall sentence was not manifestly excessive, as it was within the range that could be considered appropriate for the combination of offences. However, the court did find merit in Woods' contention that his sentence involved 'double punishment' for the same act. This was because one of the charges, making threats to kill, was based on the same factual matrix as the common law assault charges. The court acknowledged this as an error in the sentencing process. Despite this error, the court determined that it did not warrant a substantial miscarriage of justice, and therefore, leave to appeal was not granted on that ground. The court ultimately granted leave to appeal solely on the ground concerning 'double punishment', while rejecting the other grounds for appeal.

The final orders of the court were that leave to appeal was granted in respect of the proposed ground 4 concerning 'double punishment'. The court did not grant leave to appeal on any other grounds. This decision allows Woods to challenge the 'double punishment' aspect of his sentence on appeal, while the remainder of his sentence stands as determined by the trial judge.

Orders